GOP’s uneven record on the Constitution

Republican Rep. Paul Broun of Georgia won his seat in Congress campaigning as a strict defender of the Constitution. He carries a copy in his pocket and is particularly fond of invoking the Second Amendment right to bear arms.

But it turns out there are parts of the document he doesn’t care for — lots of them. He wants to get rid of the language about birthright citizenship, federal income taxes and direct election of senators, among others. He would add plenty of stuff, including explicitly authorizing castration as punishment for child rapists.

This hot-and-cold take on the Constitution is surprisingly common within the GOP, particularly among those like Broun who portray themselves as strict Constitutionalists and who frequently accuse Democrats of twisting the document to serve political aims.

Republicans have proposed at least 42 Constitutional amendments in the current Congress, including one that has gained favor recently to eliminate the automatic grant of citizenship to anyone born in the United States.

Democrats — who typically take a more liberal view of the Constitution as an evolving document — have proposed 27 amendments, and fully one-third of those are part of a package from a single member, Rep. Jesse Jackson Jr., D-Ill. Jackson’s package encapsulates a liberal agenda in which everyone has new rights to quality housing and education, but most of the Democratic proposals deal with less ideological issues such as congressional succession in a national disaster or voting rights in U.S. territories.

The Republican proposals, by contrast, tend to be social and political statements, such as the growing movement to repeal the 14th Amendment’s birthright citizenship. Republicans like Sen. Jeff Sessions of Alabama, the lead Republican on the Senate Judiciary Committee, argue that immigrants are abusing the right to gain citizenship for their children, something he says the amendment’s authors didn’t intend.

Sessions, who routinely accuses Democrats of trying to subvert the Constitution and calls for respecting the document’s “plain language,” is taking a different approach with the 14th Amendment. “I’m not sure exactly what the drafters of the amendment had in mind,” he said, “but I doubt it was that somebody could fly in from Brazil and have a child and fly back home with that child, and that child is forever an American citizen.”

Other widely supported Republican amendments would prohibit government ownership of private companies, bar same-sex marriage, require a two-thirds vote in Congress to raise taxes, and — an old favorite — prohibit desecration of the American flag.

During the health care debate, Rep. Pete Hoekstra, R-Mich., introduced an amendment that would allow voters to directly repeal laws passed by Congress — a move that would radically alter the Founding Fathers’ system of checks and balances.

Rep. Michele Bachmann, R-Minn., who founded a tea party caucus in Congress honoring the growing conservative movement that focuses on Constitutional governance, wants to restrict the president’s ability to sign international treaties because she fears the Obama administration might replace the dollar with some sort of global currency.

Broun, who is among the most conservative members of Congress, said he sees no contradiction in his devotion to the Constitution and his desire to rewrite parts of it. He said the Founding Fathers never imagined the size and scope of today’s federal government and that he’s simply resurrecting their vision by trying to amend it.

“It’s not picking and choosing,” he said. “We need to do a lot of tweaking to make the Constitution as it was originally intended, instead of some perverse idea of what the Constitution says and does.”

The problem with such a view, says constitutional law scholar Mark Kende, is that divining what the framers intended involves subjective judgments shaded with politics. Holding up the 2nd Amendment as sacrosanct, for example, while dismissing other parts of the Constitution is “cherry picking,” said Kende, director of Drake University’s Constitutional Law Center.

“There are a lot of people who obviously don’t like income taxes. That’s a political position,” she said of criticism of the 16th Amendment, which authorized the modern federal income tax more than a century ago. “But it’s in the Constitution … and I don’t think you can go around saying something is unconstitutional just because you don’t like it.”

Sloan said that while some proposals to alter the Constitution have merit, most are little more than posturing by politicians trying to connect with voters.

“People are responding to the politics of the day, and that’s not what the framers intended,” she said. “They intended exactly the opposite — that the Constitution not be used as a political tool.”

The good news, Sloan and Kende said, is that such proposals rarely go anywhere.

Since the nation’s founding, just 27 have survived the arduous amendment process, and 10 of those came in the initial Bill of Rights.

Only two have come in the past 40 years, and both avoided ideology. One, ratified in 1971, lowered the voting age to 18; the other, ratified in 1992, limited Congress’ ability to raise lawmakers’ salaries.

2 COMMENTS

By all means, let’s use the Founders’ “original intent” for the Second Amendment.”That intent was voiced by the proponent of the amendment James Madison, who said:

“A well regulated militia, composed of the body of the people, trained in arms, is the best most natural defense of a free country,”

That’s it. The first half of the amendment says the same thing. The Founders wanted an armed population for national defense, and only for national defense. There is no other intent of any of them that the Second extends to anything else, such as personal protection, guarding against a tyrannical national government or shooting birds and lawyers in Texas; those are only collateral benefits of an armed population.

But Jeff Session’s claim that we have to honor the “plain language” of the Constitution is even more problematic. Let’s look at where “plain language leads us:

Section 2 of Article I (the House) cites qualifications of its members to “be an Inhabitant of the State in which he shall be chosen.”

Section 3 of Article I (the Senate) discusses qualification of senators and says, “be an Inhabitant of that State for which he shall be chosen.”

Article II (the presidency) says the President, “shall hold his Office for the Term of four Years…”.

Then we have the Fifth and Sixth Amendments. The Fifth (the due process amendment) says, “… nor be be compelled in any criminal case to be a witness against himself …”.

The Sixth (defendant rights) says, “to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defence.”

There are no female adjectives in the Constitution. So sticking to the “plain language” of the Constitution means women can’t serve in Congress, or be President or Vice President, can’t have assistance of lawyers or favorable witnesses in criminal cases but can be compelled to testify against themselves.

As for the 16th Amendment on income taxes: it protects the people who hate it the most from being inundated with tax obligations, but Republicans don’t have enough intelligence to understand that. But that;s an issue for another time.

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